from the what-is-that-accomplishing? dept

Back in November, Congresswoman Katherine Clark introduced an anti-swatting bill. As you probably already know, swatting is when someone calls in a fake report to police about an ongoing incident at someone's home -- usually something like an "active shooter" or hostage taking or something similar -- in the interest of having police departments overreact and send out a SWAT team to deal with the situation, such as by raiding the home. The bill looks to make it a felony to use the phone system to "transmit false information with the intent to cause an emergency law enforcement response." While I'm not aware of anyone (so far) getting killed by a swatting, it seems like it's only a matter of time.

Either way, given all this, it probably shouldn't come as a huge surprise that on Sunday night, Rep. Clark found herself swatted, leading the Melrose, Massachusetts police to show up at her home, though it sounds like they handled everything carefully and appropriately.

Melrose Police spokesman John Guilfoil said the department received a recorded telephone call with a computer-generated voice at 9:57 p.m. on the department’s business line. The call, Guilfoil said, referred to “shots fired and an active shooter” at Clark’s address.

He said Melrose police officers, but not a SWAT team, responded to the address, spoke with the homeowner, and determined the call was hoax and there was no danger.

Of course, in most cases, it's quite difficult for law enforcement to ever track down whoever called in the hoax report, and it's rare for the callers to ever be caught -- though it does sometimes happen. Of course, if swatters continue to target politicians looking to pass laws against them, expect the laws and the pressure to capture them and "set an example" to continue to ratchet up. I'm sure that whoever swatted Rep. Clark is assuming that it will be impossible to track down who did that, but the higher a target you aim at, the more likely that higher powered law enforcement gets involved -- meaning it gets increasingly likely that whoever did it will be tracked down.

In the meantime, it would also be nice if we started looking at the root causes of swatting, such as the militarization of police departments where that's not even remotely necessary.

from the felony-facebooking dept

Dave Maass, over at EFF, has an absolutely insane story about how the South Carolina Department of Corrections (SCDC) added a special new level 1 felony charge (for reference: murder, rape, rioting and hostage-taking are all level 1 felonies) for... using a social network while in prison. Yes, these individuals are already prisoners, but this draconian law and even more draconian enforcement means that hundreds of South Carolina prisons are facing extended sentences and long stays in solitary confinement for... posting to their Facebook page. And that's not an exaggeration:

In October 2013, Tyheem Henry received 13,680 days (37.5 years) in disciplinary detention and lost 27,360 days (74 years) worth of telephone, visitation, and canteen privileges, and 69 days of good time—all for 38 posts on Facebook.

In June 2014, Walter Brown received 12,600 days (34.5 years) in disciplinary detention and lost 25,200 days (69 years) in telephone, visitation, and canteen privileges, and 875 days (2.4 years) of good time—all for 35 posts on Facebook.

In May 2014, Jonathan McClain received 9,000 days (24.6 years) in disciplinary detention and lost 18,000 days (49 years) in telephone, visitation, and canteen privileges, and 30 days of good time—all for 25 posts on Facebook.

Why so harsh? The SCDC says that it's a separate felony for each day that an inmate uses a social media site (oddly, you can do as much as you want in a single day and it's just a single felony -- but new day, new felony). And, of course, "social media" is defined broadly as well:

South Carolina adopted a Level 1 social media offense [PDF] to punish “Creating and/or Assisting With A Social Networking Site,” defined as: “The facilitation, conspiracy, aiding, abetting in the creation or updating of an Internet web site or social networking site.”

SCDC defines “social networking” very broadly, covering everything from YouTube and Twitter to blogs and email, although all of the cases EFF reviewed [PDF] involved Facebook. Investigations are conducted by corrections officers and inmates are convicted during disciplinary hearings that often last mere minutes.

Since the policy was implemented, SCDC has brought 432 disciplinary cases against 397 inmates, with more than 40 inmates receiving more than two years in solitary confinement [PDF].

There's a lot more to Maass's article, and it's well worth reading. He also takes Facebook to task for helping the SCDC takedown prisoners' Facebook profiles. Facebook has set up an easy form, which can lead to widespread abuse, and it doesn't appear that Facebook does much, if anything, to check to see if the accounts actually abuse the company's terms of service. There are lots of problems with the criminal justice and prison systems in the US, and there may be legitimate reasons to limit access to social media for prisoners (though that seems like a stretch in many cases). But to make it an additional felony and to lock up people for years because of it? How is that not cruel and unusual punishment?

The most half-baked "weapon" in any policeman's arsenal should never be raised to the level of a felony. "Resisting arrest" is the charge brought when bad cops run out of better ideas. This truism runs through nearly every law enforcement agency in the country. When you take a look at videographers and photographers who have been arrested for exercising their First Amendment rights (and backed by a DOJ statement), you'll see plenty of "resisting arrest" charges.

When a San Francisco public defender tried to head off a detective who wanted to question and photograph her client without her permission, she was arrested for "resisting arrest."

When someone has been brutalized by the police, the words "resisting arrest" are repeated nearly as frequently as the mantra that accompanies every taser deployment and baton swing ("stop resisting"). Resisting arrest is a dodge that makes bad cops worse and marginal cops bad.

WNYC analyzed NYPD records and found 51,503 cases with resisting arrest charges since 2009. Just five percent of officers who made arrests during that period account for 40% of resisting arrest cases — and 15% account for almost 3/4 of such cases.

If resisting arrest was a legitimate charge, the distribution would be much more even. But it isn't. It's a charge that's used most by abusive cops -- and law enforcement agencies know it.

Many policing experts consider charges of resisting arrest to be the best broad measure of use of force in arrests. The department has tracked charges of resisting arrest as a way of identifying officers who may use excessive force, said a former senior department official who insisted on anonymity because he still works in law enforcement.

To turn this into a felony is to grant bad cops a longer leash -- and allows them to do much more damage. Not only will the victims of excessive force have to deal with injuries and psychological trauma, they may also find their futures severely disrupted by a felony charge that will follow them around for years.

The protests following the clearing of the officer involved in Eric Garner's death, followed shortly thereafter by the murder of two NYPD officers by a civilian, have turned the NYPD against the public. Bratton's support of this abhorrent idea makes it clear he's willing to put more power in the hands of his worst officers. However bad he feels the situation is now, this action will only make things worse. The answer lies in greater accountability from the NYPD, not additional punishments for members of the public.

The DOJ has offered up its preferred version [pdf link] of the CFAA (Computer Fraud and Abuse Act) -- under the ridiculous name of "Updated Law Enforcement Tools" -- and it indeed would make this sort of thing an instant felony.

Here's the wording change that does it [strikethrough for deletions; bold for additions]:

(6) knowingly and with intent to defraudwillfully traffics (as defined in section 1029) in any password or similar information, or any other means of access, knowing or having reason to know that a protected computer would be accessed or damaged without authorization in a manner prohibited by this section as the result of such trafficking; if—

(A) such trafficking affects interstate or foreign commerce; or

(B) such computer is used by or for the Government of the United States;

The DOJ removes intent and replaces it with feelings. Sharing a list of common (and stupid) passwords could be construed as "willfully trafficking" passwords while "knowing" a "protected computer" could be "accessed without authorization."

And that thing about federal prison I opened the post with? That's the way the DOJ wants it. The CFAA currently allows for misdemeanor charges under certain circumstances. But this proposal does away with that. Instead of a misdemeanor-to-3 year sentence range, punishments start at 3 years and escalate to a 10-year cap. Unless, of course, your hacking is part of the commission of another felony, in which case the government proposes it should get to double dip (at minimum). Here's Orin Kerr's take on that part of the proposal:

Under the proposal, breaching a written restriction is a crime if the user violated the written condition in furtherance of a state or federal felony crime, “unless such violation would be based solely on obtaining the information without authorization or in excess of authorization.” On one hand, this might seem kind of harmless, or at least redundant: The proposal makes it a felony to break a promise on a computer in furtherance of a felony. One wonders what the point is: Why not just punish the underlying felony?

But the real problem is the double-counting issue. Federal and state law is filled with overlapping crimes. Congress might enact three crimes that do the same basic thing, giving prosecutors the choice of which to charge or allowing them to charge all three. State criminal codes often mirror the federal criminal code. That raises a question: If Congress makes it a crime to commit an act “in furtherance of” a different crime, does the existence of overlapping crimes mean that a person’s conduct violates the first crime because it was “in furtherance of” the second? This is a particular problem because every state has unauthorized access crimes a lot like the CFAA. We saw this in the Auernheimer case, where prosecutors argued that the misdemeanor federal unauthorized access alleged in that case should be a felony because it was “in furtherance of” New Jersey’s nearly identical state unauthorized access law.

As if we didn't have enough people in prison already, the DOJ proposal mandates felony charges and provides prosecutorial options to ensure very few defendants walk away with short sentences.

The proposal also asks users to perform mind-reading when accessing anything computer-based.

(6) “exceeds authorized access” means to access a computer with authorization and to use such access to obtain or alter information in thesuch computer—

(A) that the accesser is not entitled so to obtain or alter; or

(B) for a purpose that the accesser knows is not authorized by the computer owner;

Going back to the Weev case, Andrew Auernheimer obviously knew AT&T would not "authorize" his access of supposedly private information, even if all he did was alter URL components to achieve this. Now, companies' security failures can be weaponized against those who discover them -- making it highly unlikely that flaws and holes will be pointed out to those who can actually close them. Why risk a few years in federal prison (remember: no misdemeanors) just because some entitydecided to shoot the messenger rather than thank them for their help?

from the because-of-course dept

Last week, we wrote that Senator (and still for the next few weeks, Majority Leader) Harry Reid was looking for ways to push for a piece of SOPA, making streaming a felony, into law. The story we'd heard from multiple sources was that he was looking to attach it to the USA Freedom Act. His office came out and denied that claim vehemently. Still, multiple sources insisted not only that it was true, but that Reid was still looking for other vehicles to push that through. And... just days later, the White House responded to some (somewhat pointless) White House "We The People" petitions by... announcing that it, too, wanted to turn unauthorized streaming into a felony. This was in response to two separate petitions, Stop SOPA 2013 and Stop SOPA 2014. Neither petition made much sense, as SOPA has been long dead since early 2012. There was never any specific bill in either 2013 or 2014. And yet, Alex Niejelow, the chief of staff to the IP Czar (a position that is in limbo, as the new czar has been nominated, but not yet approved), used those petitions as an opportunity to reiterate that the White House, like Reid, supports making unauthorized streaming a felony.

Niejelow carefully tries to frame the plan as not going after individuals for uploading videos, but the language choices are deliberate here:

To be clear: We are not advocating for, and do not support, Congress enacting criminal sanctions against people who upload their own, non-commercial performances of other artists' works on Tumblr, against the content creators making your favorite mashup on YouTube, or against the users of these services -- like many of you who signed this petition -- who watch and listen to this digital content.

Rather, we think the law should deter the large-scale willful reproduction, distribution, and streaming of illegal, infringing content for profit. We think it is important to combat this type of activity because of the negative impact it has in diminishing the drive and economic incentive to produce the great movies, sporting events, and music that we love and that account for millions of American jobs and billions of dollars contributed to our economy annually.

Almost everything in those two paragraphs is misleading -- sometimes extremely so. As Harvard law professor Jonathan Zittrain helpfully explained back in 2011, the move to make unauthorized streaming a felony, changed the law in subtle, but dangerous ways. It's true, of course, that merely uploading a file would not be considered an offense under that part of the law (it may violate other aspects of the law), but it could still be problematic. Here was Zittrain's discussion, specifically in response to the question of whether or not Justin Bieber could have gotten in trouble for uploading videos of himself covering songs:

No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 17 USC 101:

To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.

Of course, they try to get around this by claiming they don't want this to impact "non-commercial performances." But, the definition of "non-commercial" is pretty fluid. Did you put ads on your upload? Uh oh. Did the video go viral and allow you to do something that made money? Uh oh.

Or how about the "large-scale" aspect. Well, we embed plenty of YouTube videos on this site. Would that make us "large-scale"?

And then there's the "negative impact" argument. Really? What is the actual negative impact from people streaming these works? As we've shown, the actual output of basically all of these industries is rapidly increasing. There doesn't seem to be any evidence of a negative impact at all. It's especially bullshit to slip in "sporting events" in there (but, again shows how sporting organizations, including UFC and MLB, have been key to lobbying for this change), when the sporting events industry is thriving at unprecedented levels, and many of the major sports leagues (especially MLB) have shown that when you make a really good premium product, people will pay.

In fact, literally the day after the White House appeared to be arguing that streaming has created a "negative impact [that is] diminishing the drive and economic incentive to produce great... sporting events," PwC came out with its latest analysis of the sports market in North America, showing that it's nothing but up, up and up for sporting events in the US. If people streaming these events online has diminished the economic incentives, someone forgot to tell, well, everyone. If your job is to be in charge of understanding "intellectual property" in the US, shouldn't facts like this have a role? Here's PwC's data (2014 is estimated, as of October), and it shows a pretty steady upward trend, especially on "media rights," the only part really likely impacted by any streaming:

Furthermore, if you look at the full report [pdf] PwC predicts continued massive growth, especially in media rights, but we won't show that because it's speculation.

But, basically, the argument that sports events are somehow facing negative incentives to put on great events because some people are streaming unauthorized versions just doesn't make any sense at all. It makes the claim that such a law is needed incredibly suspect, and hints strongly at the simple fact that this is nothing more than an attempted government favor to certain lobbyists.

Even where sports streaming does occur, it tends to be in situations where the leagues themselves have made it nearly impossible to legitimately pay for access in the first place, with idiotic concepts like blackout rules. Want to massively decrease unauthorized streaming of sporting events? Make better services and drop blackout rules. No need to turn hosting a webpage with some embeds into a felony.

Either way, it seems clear that the White House (and some in the Senate) still don't realize that all of SOPA was a bad idea, including the ridiculous plan to make unauthorized streaming a felony.

from the when-reality-sets-in dept

It's hard to imagine looking at the absurdly excessive copyright penalties on the books and thinking, "Hey, maybe these should be a bit higher." But Congress has shown itself to be exceedingly imaginative when it comes to cranking up copyright, so perhaps it is no surprise that in yesterday's hearing on those penalties—covering statutory damages and criminal sanctions—a number of witnesses and Representatives alike seemed to think that those remedies are insufficient.

More surprising, though, was an unexpected moment of clarity from Michigan's Rep. John Conyers, a staple of the Judiciary Committee's reform hearing process and a reliable supporter of ratcheting up copyright enforcement capabilities. Conyers broke the first rule of copyright exceptionalism club by actually talking about the fact that this discussion would seem pretty unreasonable—even by Congressional standards—in areas outside of copyright.

Specifically, Conyers referred to the very real problem of overcriminalization, which absolutely afflicts copyright policy. This, after all, is the area of law that has made us an "Infringement Nation," routinely racking up millions of dollars in hypothetical damages throughout the course of an average day. Conyers generally pushes back against this overcriminalization, but here he is arguing for misdemeanors to be made into felonies—what gives?

If you can't see that, here's the key clip, though it helps to watch the video:

Conyers: Mr. Assistant Attorney General, what else can we do besides addressing the felony streaming issue? It seems like... uh... once we get that going... uh... {long pause}... Well, it seems to me like there's an underprosecution. Normally, I... {pause} come to the committee complaining about overcriminalization. {Looks around} And now I find myself in the awkward position of saying... uh... let's make a felony of somebody's misdemeanors. Can you give me some comfort in some way? {awkward smirk}

David Bitkower, the witness from the Department of Justice, basically says that from the DOJ's perspective there is no overcriminalization problem, which is unsurprising. Then Nancy Wolff, a witness from the law firm of Cowan, DeBaets, Abrahams & Sheppard, adds that the ridiculously high damages helps plaintiffs force defendants to settle. Finally, Public Knowledge's Sherwin Siy notes that Conyers's question was spot on: our current excessive penalties do encourage certain plaintiffs to pursue non-meritorious claims, and that's something to be concerned about.

You can see on Conyers' face that he was looking for some resolution to his cognitive dissonance, but he couldn't find it. Copyright exceptionalism is simply inconsistent with fact-based policy—so when it comes time to reconcile the two, you're going to have a bad time.

Let's hope this moment was a lawmaker beginning to see the light. As EFF lays out in our brand new copyright whitepaper, "Collateral Damages", excessive and unpredictable penalties can chill free speech and stifle innovation. On such an important issue, it's encouraging to see lawmakers breaking from the standard script.

from the a-short-bill,-broken-all-over dept

How can you tell if an introduced bill is a bad piece of legislation? Well, there are several indicators to look for -- overly broad language, written as a reaction to a recent tragedy -- but when a bill is referred to as the "retaliation bill" by a large majority of the press, the problems are right there on the surface. (h/t to Techdirt reader Rekrul)

The bill, titled "filing false complaints against a law enforcement officer," was introduced in February by the Committee on Corrections and Juvenile Justice and moved quickly to the Taxation Committee before ending March 13 in the Committee for Transportation and Public Safety Budget. In its one-hour Tuesday hearing, according to the legislative research department, only one person spoke in favor of the bill while eight others, including legislators and the National Association for the Advancement of Colored People, spoke against it…

According to the bill, a complaint over a law enforcement officer that a department finds to be false "shall be closed immediately and the law enforcement agency shall seek criminal prosecution against the complaint for perjury." All complaints would be submitted with a signed affidavit that included the time, date, place and nature of the offense. Current law requires that law enforcement departments review all complaints, whether anonymous or signed.

This bill, currently stalled, would make it a felony to file a false complaint against a police officer, something that used to be handled via civil litigation. And there would be no option for filing anonymous complaints, which would further discourage the reporting of alleged police misconduct.

In addition, officers would be allowed to view the complaint and any related evidence before making a statement, giving accused officers a chance to craft narratives before issuing statements that might be contradicted by the evidence submitted. The complaint's lack of anonymity would give accused officers the name, address, phone number, etc. of their accuser, something that could easily lead to harassment. (Of course, law enforcement agencies could strip this information before presenting it to the accused officer [the bill contains no stipulation to do so], but how many here believe that would actually happen -- or that the information couldn't be accessed otherwise?)

Also problematic is the fact that the bill stipulates that "no other law enforcement agency" can open an investigation on a complaint if another agency has performed an investigation and found no evidence of wrongdoing. This would keep all investigations "in-house," which greatly contributes to the likelihood that complaints will be found false (and subsequently, result in felony charges against the filer). This would prevent agencies like the FBI and DOJ from investigating closed complaints to see if anything was missed or covered up. This stipulation would further insulate police from accountability.

The bill is so bad even the attorney for the local police union (the entity that usually works hard to restore bad cops to their former positions) found the wording somewhat problematic.

The one person who testified in favor of the bill Tuesday was Sean McCauley, an attorney for the Kansas chapter of the Fraternal Order of Police and the Kansas State Troopers Association. While he had reservations about allowing departments to pursue charges for unfounded or minor allegations, local FOP President Sgt. Tyson Meyers did see some value in the bill.

"I'd like to protect officers against false allegations," he said, stating officers can be subject to administrative leave following a complaint or suffer from a tarnished reputation even if the allegation is proved to be false.

"At the same time, we should police our own and have the integrity to monitor our department."

He also added that it was a bad idea to limit complaint investigations to one department, noting that previous investigations by outside agencies had led to the rooting out of bad cops who otherwise would have gone unpunished.

As it stands now, the bill is effectively dead. The coverage of the bill has been universally negative, and after its nearly one-sided showing during its floor appearance, no further discussions on the bill have been scheduled. The question remains as to why such a bill, loaded with negative side effects for the public, was ever introduced, as well as who exactly is behind it. The committee page lists several names, but the bill's sponsor is the committee itself, rather than a certain legislator. Safety in numbers applies to bad legislation, it seems. The bill seeks to out anonymous complainants, but has been shepherded into the public forum by no one in particular.

from the ridiculous dept

Many of us are still quite disappointed that James Clapper has kept his job as Director of National Intelligence after flat out lying to Congress over whether or not the NSA spied on Americans. There have been increasing calls from within Congress to have Clapper investigated and possibly prosecuted for the felony of lying to Congress, but there appears to be no movement there at all. Not only does the Obama administration seem to want to protect one of their own, but it's also made it clear that something like that would make it look like Ed Snowden "won" and they can't allow that sort of thing.

“I think that Jim Clapper himself would acknowledge, and has acknowledged, that he should have been more careful about how he responded,” Obama told CNN’s Jake Tapper. “His concern was that he had a classified program that he couldn't talk about and he was in an open hearing in which he was asked, he was prompted to disclose a program, and so he felt that he was caught between a rock and a hard place.”

I'm wondering if anyone else charged with a felony for lying to Congress will now be able to use that excuse: yes, yes, they should have been more careful in how they lied to Congress.

As for the "rock and a hard place" claim, that's also simply untrue. Clapper knew full well the question was coming and also knew full well that he could easily respond by saying a variety of things, such as "I can only fully answer that question in a closed hearing." Clapper knows he can do this because he's done it many times before. In fact, he did it just this week when asked another question by Senator Wyden about the NSA's activities. He specifically said that he was uncomfortable discussing such details in an open hearing but would be happy to discuss them during a closed session. And, in fact, Clapper had done similar things in previous sessions, as is clear from the correspondences between him and Wyden that pre-dated the hearing where he lied.

For example, take a look at a letter Clapper sent in 2011 to Senator Ron Wyden, in which he states: "the questions you pose on geolocational information are difficult to answer in an unclassified letter." He was able to do that in 2011 and no parade of horribles followed. It did not reveal any "sources and methods" of classified intelligence. He easily could have done the same thing in 2013 when asked.

There was no rock. There was no hard place. Clapper didn't need to "be more careful." He lied. Which is a felony. And the President is excusing it because he doesn't want Snowden to "win."

from the not-this-again dept

We've been working our way through a paper released last week by the Commerce Department, concerning copyright reform, and will have a much more detailed post about it soon (there's a lot in there), but over at the Washington Post, they're highlighting the silly recommendation to bring back the plan to make unauthorized streaming a felony. This was a part of SOPA and was widely discussed. It wasn't technically in PIPA, but there was something of a "companion" bill from Senator Amy Klobuchar that effectively had the same thing. This got a fair amount of attention when Justin Bieber was asked about the law, and said that Klobuchar should be locked up.

It's no surprise that this is coming back. It's one of the points that's been raised a few times since the death of SOPA. As we explained back during the original debate, there are different "rights" associated with copyright law, including distribution, reproduction, etc. For very good reasons, when the government put in sections on what could be considered criminal infringement, they left the "public performance" right off of the list of possible felonies. And that's because it's fairly absurd to consider a felonious public performance of a work. But, because of the rise of streaming sites, and the continued myopia of the entertainment industry, they're afraid that sites that embed works from elsewhere might not be seen as technically violating the distribution or reproduction rights (for good reason), and thus they want to elevate public performance as a felony to try to let the feds go after such sites.

This is misguided on a variety of levels. First of all, it's an attack on secondary liability. A site that is posting embeds of content hosted elsewhere shouldn't be held criminally liable for that content -- especially when that content may change over time and they have no direct control over it. If the original content is infringing, go after whoever uploaded/hosted the original content. Not the sites that merely have an embed. Furthermore, because the lines between reproducing, distributing and public performance can get blurry at times, it's very likely that any increased criminality for public performance will be stretched and abused to cover things that people think should be perfectly legal. As Harvard law professor Jonathan Zittrain explained in detail last year, the streaming provisions could clearly apply to something as simple as posting videos of yourself performing a cover of a popular song you don't have a license to.

Part of the issue is that current copyright law defines a public performance as follows (from 17 USC 101):

To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Note just how broad that is. If you "transmit or otherwise communicate a performance or display of the work" for the purpose of having it performed or displayed at a place open to the public, you may be involved in a public performance. It's not hard to see how that might be used to include people posting videos on YouTube.

And, really, this whole idea is misguided. It comes from the entertainment industry's ridiculous belief that if they just keep playing Whac-a-mole with whomever they've decided is the "enemy" this week, it will eventually bring back old business models. Sites that embed streams from elsewhere aren't the enemy. Trying their operators into felons is fraught with all sorts of dangerous unintended consequences. You'd think that, given what happened with SOPA that administration officials would shy away from pushing more such backwards-focused plans... but they just can't resist.

from the is-actually-Dolan-water dept

April Fool's Day. Either you love it or you hate it. There's not much middle ground. As a writer on The Internet, April Fool's Day is a 24-hour deathtrap composed of plausible stories that will set you on fire the moment you press the Publish button. It turns even the most cheerful of writers into a deeply cynical curmudgeon, one who approaches each possible scoop with more suspicion than the heavily-bearded guy down the street who's building a bunker under his garage and frequently answers the door wearing nothing but a shotgun. (Much of this reverts back to normal following the "holiday," but each year adds another layer of resentful suspicion. In fact, if you cut open a writer, you can simply count the rings to determine how many years they've been in the business.)

For many people, though, April Fool's Day is a 24-hour period filled with lighthearted pranks and sub-Onion quasi-satire. They love cheerful shenanigans and they love being fooled. Except when they don't. Then it's suddenly "gone too far" and concerned foolees start pressing for "something to be done about it." This is one of those stories, the kind where you can't fool all of the people all of the time, but you can temporarily fool enough of them that someone gets seriously pissed off.

Florida country radio morning-show hosts Val St. John and Scott Fish are currently serving indefinite suspensions and possibly worse over a successful April Fools' Day prank. They told their listeners that "dihydrogen monoxide" was coming out of the taps throughout the Fort Myers area.

If you're not familiar with the term "dihydrogen monoxide," you'll be thrilled to know that the compound is damn near everywhere. Not only that, but its ubiquity has prompted many a petition to be signed fervently in favor of banning the dangerous-sounding substance completely. No one's really sure what makes it so dangerous, but anything containing two parts hydrogen and one part oxygen can't be completely safe.

Of course, anyone who's paid attention over the last couple of decades (at least) knows that dihydrogen monoxide is water. What's surprising is that a couple of pranking DJs could find enough people unaware of this fact to a.) pull off the prank and b.) possibly face felony charges. Wait... what?

[A]pparently, the station, the water works, and perhaps the authorities are still trying to figure out if the two hosts could face felony charges for, again, reporting that the scientific name of water was coming out of the pipes. "My understanding is it is a felony to call in a false water quality issue," Diane Holm, a public information officer for Lee County, told WTSP, while Renda stood firm about his deejays: "They will have to deal with the circumstances."

It seems unlikely the DJ duo will actually face felony charges, but they are currently suspended after being yanked off the air in the middle of their morning show. Apparently, enough people expressed their concern about dihydrogen monoxide leakage that the local water utility was forced to issue a statement.

These reactions to an April Fool's prank that occurred on a day when pranks are to be expected seem rather overblown. The DJs are suspended indefinitely for technically telling the truth and the station has indicated the pair are facing additional punishment. Sure, nobody wants to feel like a fool, but that is the totality of April 1st. If this many people can't take being taken for a ride on the foolingest day of the year, then it's a clear sign that the national sense of humor is in critical condition. (We've already eulogized the national sense of proportion and scattered its ashes across a variety of moral panics and Terms of Service outrages.) To put it in more familiar terms, "If you can't laugh at yourself, the terrorists win."

[It appears the terrorists have won. (Again.) A poll on the radio station's website (warning: ads frickin' everywhere even with Adblock) shows that 78% of the respondents believe the DJs should return to the airwaves "never." (Poll is no longer live, but an "indefinite" suspension could technically lead to returning "never.")]